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London v. Miller
United States District Court, D. South Dakota, Southern Division
July 2, 2018
LAURA LONDON, SURVIVOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL J. LONDON; Plaintiff,
DARRELL MILLER, SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; STEVE SMITH, ATTORNEY, QMHP, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; SCOTT POWERS, DEPUTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOHN KOENIG, S.D. HIGHWAY PATROL TROOPER, RETIRED, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOE HUTMACHER, CHAMBERLAIN POLICE CHIEF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; FRANK SCOTT, KIMBALL POLICE CHIEF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DUSTIN POWELL, CHAMBERLAIN POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CATLAND LANDEGENT, CHAMBERLAIN POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CODY SCHMEICHEL, S.D. HIGHWAY PATROL TROOPER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CHRIS KONRAD, SOUTH DAKOTA DCI AGENT, FN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TOBY RUSSEL, SOUTH DAKOTA DCI AGENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; BRIAN BIEHL, S.D. HIGHWAY PATROL TROOPER FORMER, FN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ADAM WOXLAND, S.D. HIGHWAY PATROL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; STEVE MANGER, SHERIFF LYMAN COUNTY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TERRANCE REYELTS, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DEAN KNIPPLING, POLICE SGT., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DON JENNINGS, DEPUTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT MAYER, SOUTH DAKOTA HIGHWAY PATROL SGT., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DIANA LANDEGENT, CONSERVATION OFFICER, SDGFP, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; BRIDGET MAYER, ASSISTANT ATTORNEY GENERAL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; KELLY MARNETTE, ASSISTANT ATTORNEY GENERAL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; DAVID NATVIG, STATE'S ATTORNEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; PAUL SCHEUTH, CHIEF OF POLICE & JAIL ADMINISTRATOR, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RICHARD BERTRAM, STAFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; WINNER CITY JAIL STAFF, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY; WINNER CITY JAIL MEDICAL STAFF, IN THEIR OFFICIAL CAPACITY; AND BRULE COUNTY JAIL STAFF, IN THEIR OFFICIAL CAPACITY; Defendants.
ORDER OPINION AND ORDER REGARDING REASON FOR
DISMISSAL WITHOUT PREJUDICE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Laura London (Laura) brought this 42 U.S.C. § 1983
action against twenty-six defendants on December 5, 2017.
Doc. 1. Ms. London, acting as personal representative of the
estate of her father Michael London (Michael), seeks to
recover for damages she alleges he suffered due to
deprivations of his constitutional rights during the episodes
which led to his arrest and during the months he spent in
prison before his death on October 16, 2015. Michael died
unmarried, Doc. 31-10, and intestate, Doc. 31-8, survived by
his children, David London, Donald London, Michael E. London,
and Laura, Doc. 31-10. Defendants move to dismiss on various
grounds. Many seek dismissal under Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Defendant Frank Scott moves
to dismiss Laura's claim against him under Rules 12(b)(2)
and 12(b)(5). Other defendants seek dismissal on 12(b)(6)
grounds and invoke qualified immunity. For the reasons stated
below, this Court denies defendants' 12(b)(1) motions to
dismiss, but will dismiss Laura's complaint without
prejudice for a different reason, unless she obtains counsel
by July 19, 2018.
Defendants' 12(b)(1) Motions
12(b)(1) motions challenge Laura's standing to bring this
suit. Defendants argue that because she was not the personal
representative of the estate when she filed this suit, she
lacks standing to bring the case. In Robertson v.
Wegmann, 436 U.S. 584 (1991), the Supreme Court ruled
that state law determines both whether a § 1983 cause of
action survives the death of the party entitled to bring the
claim and who is entitled to bring a surviving § 1983
claim on behalf of the decedent's estate. "Under [42
U.S.C.] § 1988 ... state statutory law, modifying the
common law, provides the principal reference point in
determining survival of civil rights actions . . . ."
Robertson, 436 U.S. at 589 (footnote omitted). Thus,
this Court applies South Dakota law to resolve this issue.
South Dakota, "[a] 11 causes of action shall survive and
be brought, notwithstanding the death of the person entitled
or liable to the same. Any such action may be brought by or
against the personal representative or successors in interest
of the deceased." SDCL § 15-4-1; see also
SDCL § 29A-3-703(c) ("[A] personal representative
of a decedent domiciled in this state at death has the same
standing to sue and be sued in the courts of this state and
the courts of any other jurisdiction as the decedent had
immediately prior to death."). Furthermore, "[t]he
powers of a personal representative relate back in time to
give acts by the person appointed which are beneficial to the
estate occurring prior to appointment the same effect as
those occurring thereafter." SDCL § 29A-3-701.
After several defendants filed motions to dismiss, Docs. 18,
22, 24, Laura was appointed to serve as the personal
representative of her father's estate on February 16,
2018. Doc. 31-1. Under South Dakota law, Laura's present
powers as personal representative relate back to when she
commenced this suit on behalf of her father's estate.
SDCL § 29A-3-701. Therefore,' defendants'
argument that Laura lacked standing because she was not
personal representative when she filed the complaint lacks
merit now that she has been so appointed, and their 12(b)(1)
motions are denied.
Other Standing Deficiency
brief in opposition to the motions to dismiss, Laura argues
that she should be allowed to continue proceeding pro se in
this action. Doc. 31 at 1. However, Laura is not actually
appearing "pro se" (for herself), but rather on
behalf of her father's estate. Doc. 1 at 1. In Jones
ex rel. Jones v. Correctional Medical Services, Inc.,
401 F.3d 950 (8th Cir. 2005), the Eighth Circuit held that 28
U.S.C. § 1654 "prohibit[s] a non-attorney
administrator of an estate from proceeding pro se when there
are other beneficiaries or creditors of the estate." 401
F.3d at 951. This holding appears in conflict with SDCL
§ 29A-3-703, which imparts to personal representatives
"the same standing to sue and be sued in the courts of
this state and the courts of any other jurisdiction as the
decedent had immediately prior to death," but
"state law that conflicts with federal law has no
effect," Jones v. Vilsack, 272 F.3d
1030, 1033 (8th Cir. 2001). Thus, the rule stated in
Jones ex rel. Jones v. Correctional Medical Services,
Inc. controls in this case.
is not an attorney licensed to practice before this Court,
nor in state court. State Bar of South Dakota, Membership
Directory As of March 20. 2018, § 2 at 12 (2018).
She is not the only beneficiary of Michael's estate and
thus cannot proceed prose. Jones, 401 F.3d at 952. Under SDCL
§ 29A-2-103, an intestate decedent's entire estate
passes to the decedent's descendants by representation if
there is no surviving spouse. South Dakota's
representation scheme provides that "the estate or
[intestate] part thereof is divided into as many equal shares
as there are (i) surviving children of the estate, if
any." SDCL § 29A-2-106(a). Four of Michael's
children survived him as heirs. Doc. 31-10. Thus, Laura
cannot proceed pro se without engaging in the unauthorized
practice of law, and her complaint should be dismissed under
Jones. Jones, 401 F.3d at 951-952.
Court will dismiss this case without prejudice to refiling
later with counsel, unless Laura hires counsel to proceed and
notifies this Court and opposing counsel no later than July
23, 2018. See Memon v. Allied Domecq OSR, 385 F.3d
871, 874 (5th Cir. 2004) (noting that district courts
generally warn the party of need for counsel before dismissal
or dismiss without prejudice).
reason stated above, it is
that the motions to dismiss made under Rule 12(b)(1), Docs.
22, 24, 29, are denied. It is further
that the complaint will be dismissed without prejudice to
refiling, unless Laura secures counsel to ...